At sentencing, defendants are expected to express remorse for their crimes. Indeed, the defendant who fails to impress the judge with the sincerity of his contrition is apt to face a longer sentence on that basis. But what if the defendant chooses to say nothing at all at sentencing? On the one hand, a judge might infer a lack of remorse from the defendant’s silence. But, on the other, there seems some tension between penalizing a defendant’s failure to speak and the Fifth Amendment privilege against self-incrimination.

The Seventh Circuit addressed this tension earlier today in United States v. Keskes (No. 12-1127) (Tinder, J.). Convicted of mail fraud, Keskes apparently declined the opportunity to allocute at his sentencing. The district judge then made note of this in finding a lack of remorse and increasing Keskes’ sentence on that basis. On appeal, Keskes argued that the sentence violated his right to remain silent. The Seventh Circuit, however, affirmed.

This was not a sweeping holding, and the court’s opinion left open the possibility that in other circumstances the Fifth Amendment might be violated by penalizing a defendant’s silence at sentencing. For one thing, since Keskes did not timely object to his sentence enhancement, his appeal was evaluated under the deferential plain-error standard. For another, the court emphasized some specific facts of his case:

Keskes did not assert his Fifth Amendment privilege at the sentencing hearing. Had he done so, he would have alerted the court to the fact that his silence should be viewed as an exercise of his constitutional right rather than a lack of remorse. And as in Johnson, 903 F.2d at 1090, where the court explicitly recognized the defendants’ right not to acknowledge their crimes, the district judge here expressly stated that Keskes did not have to address the court at sentencing.

Furthermore, the district court identified other factors besides Keskes’s silence that reflected a lack of remorse: “after being convicted at trial, [Keskes] has still refused to acknowledge his responsibility for his crime and argued in his sentencing memorandum that he did not know the merchandise he received was stolen.” The record supports these findings. (24-25)

Keskes’ appeal raised a number of additional objections to his conviction and sentence, but none gained any more traction than did the Fifth Amendment issue.